Cardinal Error or Doing the Right Thing?

By Joe Feuerherd
National Catholic Reporter
Downloaded March 20, 2004

It is easy to make promises, say critics of the way the U.S. hierarchy has responded to the clergy sex abuse crisis.

Foremost among the pledges the bishops made in their Charter for the Protection of Children and Youth: the Catholic church will cooperate with civil authorities in reporting cases of suspected child abuse.

Now comes the hard part.

Last week, and again today, state legislators in Maryland considered legislation that would add members of the clergy to the list of "mandatory reporters" of suspected child abuse. Currently, teachers, health care workers, police officers and "human service workers" are mandatory reporters under Maryland law.

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The state's Catholic Conference, which represents the Washington and Baltimore archdioceses in Annapolis, is the only vocal opponent of the legislation. Cardinal William Keeler chairs the conference's board, whose members also include Washington Cardinal Theodore McCarrick.

It's the second time in two years that the conference has spoken out against legislation that would expand abuse reporting requirements. Last year, the conference argued that the legislation did not protect the seal of the confessional.

And they were right: The bill would have permitted continued confidentiality for perpetrators of child abuse who confessed their deeds during the sacrament, but it would have required reporting if an abuse victim or third-party revealed the crimes during the Sacrament of Reconciliation. McCarrick, writing in the Catholic Standard, said that if the legislation passed he would "instruct all the priests in the archdiocese of Washington who serve in Maryland to ignore it and to indicate they are acting on direct orders from me as their archbishop and religious superior."

Though the legislation contained no criminal penalties, McCarrick said he would "gladly plead civil disobedience and willingly -- if not gladly -- got to jail."

Amidst that hubbub, the legislation failed.

So the bill's authors went back to the drawing board. This year, the proposed legislation protects from disclosure abuse allegations "communicated to the minister, clergyman, or priest in the course of a confidential penitential communication" where "the minister, clergyman, or priest is specifically bound to maintain the confidentiality of that communication under canon law or church doctrine."

Not good enough, Conference Executive Director Richard Dowling told the Maryland Senate Judicial Proceedings Committee March 10. The legislation, said Dowling, would "strip away from the clergy/penitent privilege the important context which state lawmakers intended for it when they applied the privilege to the matter of reporting suspected child abuse." Further, said Dowling, the measure "would deny the privilege's protection to some Protestant clergy" and to Catholic clergy "who function in roles additional to that of confessor."

In addition, said Dowling, "it targets clergy in a way that is neither warranted, nor fair."

Not the case, countered Dominican Fr. Thomas Doyle, a canon lawyer and well-known advocate for abuse victims.

"There is nothing in this bill that will even remotely threaten, impinge on or circumvent the free exercise of religion by Catholic clerics from priests to cardinals," Doyle told the committee. Further, said Doyle, "I see nothing in this bill that would be potentially detrimental to clergy of other Christian or non-Christian denominations."

Judith Miller, chair of a local Voice of the Faithful chapter, told the committee, "The bill has been carefully drawn to continue to protect the confidentiality of confidential penitential communications, including Catholic confession."

Not far below the surface of the debate is the question of money.

While the legislation creates no criminal penalty for failure to report abuse, it may be a boon for litigation against the church.

If a priest failed to report abuse, said Baltimore attorney Paul Sandler, such a law could be used to demonstrate "negligence" on the part of his superiors. Sandler's firm has won judgments against the church in recent litigation.

Attorney Gregory Gianforcaro, who has made such arguments to courts in New Jersey, welcomed the legislation. "If somebody failed to advise the authorities of a known sex abuser and then that person went on to commit other offenses a jury would be hard pressed not to determine that to be negligence." Continued Gianforcaro, "Frankly, I think a jury would find it to be gross negligence."

Unlike last year, the Maryland Catholic Conference has not mounted a public campaign against the bill. It is not mentioned on the conference Web site, or in the phone calls that parish-based members of the Conference's Legislative Network make to politically active Catholics in the state.

Is this yet another case of church officials protecting their own? Or is it, in the words of the National Review Board that investigated the crisis, "bishops and other church leaders [relying] too heavily on lawyers" while overreacting to the "threat of litigation"?

No, Dowling told NCR. "We have deep regret for the harm that has been caused, for the sins that have been committed, but that regret can't, and shouldn't, and mustn't prevent us from standing up for what we know is right, which is what we are doing in this case."


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